EDWIN v. TILLAKARATNE

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EDWIN
v.TILLAKARATNE
COURT OF APPEALGUNAWARDENA. J.
C.A. 145/99AUGUST 03rd, 2000
Land Acquisition Act -9oJl 950 S7. S. 42 person interested ■ Acquisitionof land – State Lands (Recovery of Possession) Act No. 7 of 1979. S.5quit Notice – Validity of same – due process of law.
Held :
(1) When the statutory scheme embodied in the Land Acquisition ActItself provides a procedure for ejectment or remedy it must in thegenerality of cases, be taken to exclude any other procedure or remedy.
(ii) Application that had been made to the Magistrates Court in pursuanceof S.5 of the State Lands Recovery of Possession Act cannot beproceeded with.
APPLICATION for a Writ of Certiorari.
Cases referred to :
Senanayake v. Damunupola – 1982 2 SLR 621S. T. Gunawardena for Petitioner.
Vtran Corea S. C.. for la and 2nd Respondents.
Cur. adv. uult.
May 02. 2001.
U. DE Z. GUNAWARDENA, J.The petitioner has made this application seeking an orderof certiorari to quash the quit notice (E) dated 04. 07. 1997issued on him by the 1st respondent who is the DivisionalSecretary (Dehiwala – Mt. Lavinia), under section 3 of the StateLands (Recovery of Possession) Act no. 7 of 1979 (the object of
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IZdwln v. Tillakaratne
(U. de Z. Gunawardena, J.)
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the said Act being to make provision for recovery of possessionof state lands from persons in unauthorized possession oroccupation thereof) requiring the petitioner to vacate theallotment of land, the four boundaries of which land arementioned in the schedule to the said quit notice, but not thename. However, from the schedule in the quit notice it is clearthat the name of the relevant allotment is Korapuwa Henawattaand is depicted as lot no. 2 in plan no. 1999 (2R1) the extent ofwhich lot is 35.4 perches. It is virtually an admitted fact thatthe petitioner has a building and other improvements on thesaid the lot, which lot or premises now bears asst. no. 132 andthat the petitioner is carrying on a hotel in that building, onmore than a modest scale. It is also an admitted fact that thisland had been acquired by the state, somewhere in the year1972, under the provisions of the Land Acquisition Act no. 9 of1950 (as amended) the broad object of the said Act. accordingto its long title, being “to make provision for the acquisition oflands and servitudes for public purpose and to provide formatters connected with or incidental to such provision”.
To determine the question as to whether the 1st respondentcould have validly issued a quit notice on the petitioner in termsof the State Lands (Recovery of Possession) Act, or ratherto consider the same, it is necessary to state the relevantbackground facts. The fact that the petitioner had been inoccupation of the lot in question even prior to the acquisition ofthe land by the State – the portion occupied by the petitionerbeing only a part of the whole land – has not been disputed.The entire land that was so acquired by the state is depicted aslots T and 2 in plan (2R1) – the portion presently occupied bythe petitioner being depicted therein, as stated above, as lot 2.It is also common – ground that despite the acquisition by thestate the petitioner continued to occupy the portion shown aslot 2 in the plan marked 2R1. The petitioner had also averredin his petition that the officials of the National Water Supplyand Drainage Board (2nd respondent) itself barbwired lot 1 inthe said plan excluding lot 2 – the two lots being contiguous, sothat the petitioner had been in exclusive and uninterrupted
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possession of lot 2 notwithstanding the fact that the entire land(depicted as lots 1 and 2 in plan 2R1) was formally acquired inthe year 1972. The petitioner had also produced statements ofwater consumption (water bills) issued by the 2nd respondent -board itself in respect of this premises (occupied by the petitioner)bearing assessment no. 132, Allen Avenue. Dehiwala. Thesewater bills issued by the 2nd respondent is. perhaps,relevant to show that the 2nd respondent had acquiesed in thepetitioner continuing to possess the relevant lot notwith-standing its acquisition by the state. It is worth pointing outthat the authorities are now seeking, to evict the petitioner fromthe aforesaid lot 2 in plan 2 R1 (on the basis that the state hadacquired the same) for the purposes of the 2nd respondent. Infact the Is' respondent in his affidavit had averred that theacquisition of the land was made in the year 1972, for theexpress purpose of enlarging the water tank belonging tothe 2nd respondent and also for the purpose of constructing a. housing complex for the officers engaged in the service of the 2ndrespondent.
It is manifest that the procedure adopted by the Is1respondent in seeking to evict the petitioner in pursuance ofthe provisions of the State Lands (Recovery of Possession) Act,no. 7 of 1979 is misconceived. I think section 42( 1) of the LandAcquisition Act no. 9 of 1950 (as amended) caters to a situationsuch as this we have met with in this case. The petitioner isclearly a “person interested" within the meaning of section 7 ofthe Land Acquisition Act. A “person interested" may fall intoany one of the categories of persons who have an "interest" inthe land as owner, co-owner, mortgagee and includes also alessee. The fact that the petitioner was a lessee or a tenant underAbdul Raheem was not in controversy at the hearing before me,and was, in fact, borne out and by several rent receipts issuedby Abdul Raheem from whom the land had been acquired bythe state. The submission of the learned Counsel for thepetitioner is, in substance, this : that is, that the petitioner oughtto have been evicted, if at all, under section 42 of the LandAcquisition Act which sets outs the procedure to be employed
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Edwin v. Tlllakaratne
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or followed in evicting a person in occupation of a buildingstanding on a land acquired by the state, and that submissionhas much to commend it. In fact, the submission of the learnedCounsel for the petitioner seems to suggest that the fact thatthe petitioner (who was a lessee or a tenant under the personfrom whom the land was acquired in 1972 under the LandAcquisition Act) is still in occupation serves to show thatproceedings in respect of the relevant land, initiated under theLand Acquisition Act, had not yet been completed or broughtto a close of finality in pursuance of the provisions of the saidAct.
The report appended to plan (2R2) marked by the 2ndrespondent – board itself shows that there were permanentbuildings on lot 2 (which is the lot relevant to this application)even at the date of acquisition by the state, which was morethan 28 years ago. It is not denied by the 1st and 2nd respondentthat even as at that date, that is, when the land was acquired intlie year 1972, the petitioner was in occupation of the lot inquestion, so that under the Land Acquisition Act no. 9 of 1950(as amended) the petitioner was clearly a “person interested”,within the meaning of section 7 of the said Act, who couldnot, in any event, be evicted without being compensated inrespect of his improvements (if, in fact, he is the owner of suchimprovements) which, in this instance, are fairly substantial.The fact that the petitioner had continued in occupation,perhaps, inferentially proves that he had not been compensatedin respect of his improvements. It is, somewhat improbable thatthe state compensated the petitioner and also allowed him tocontinue in occupation. There is nothing to indicate that thepetitioner was, at least notified in terms of section 7 of the LandAcquisition Act, as he should have been. There is not even abare averment to that effect. If the petitioner is permitted to beejected by invoking the State Lands (Recovery of Possession)Act – he would be deprived of or denied the compensation towhich he is entitled as matter of law or of right – since thereis no sanction or provision for the payment of compensation(in case he is found to be entitled to such compensation afterinquiry) under the Act in terms of which the quit notice, soughtto be quashed on this application, had been issued by the 1st
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respondent. The long and short of it is this: in the circumstancesor state of facts (outlined above) in this case, which facts arenot really in controversy, the steps, if any. have to be takenor the process initiated in the year 1972 under the LandAcquisition Act, has to be to carried on or completed – if that is,in fact, possible after the effluxion, of such a considerable lengthof time, approximating to nearly three decades – under the sameAct.
I think it would be appropriate to refer to the case ofSenanayaka v. DamunupolaU) where it was held by a bench ofthree judges of the Supreme Court that "the State Lands (Re-covery of Possession) Act no. 7 of 1979 was not meant to obtainpossession of land which the state had lost possession of. byencroachment or ouster for a considerable period of time byejecting a person in such possession”. Of course, in that casethe title of the state was also called in question.
The inapplicability of State Lands (Recovery of possession)Act to the situation we are faced with in this case is bestexplained by an illustration. Suppose, the authorities sought toeject the petitioner immediately after the land was acquiredunder the Land Acquisition Act, nearly thirty years ago. Then,ejectment would have been necessarily sought to be effectedunder the Land Acquisition Act employing the machineryprovided by the said Act itself under which the acquisition wasmade. What I am seeking to explain is this: acquisition cannotbe made under one Act, and ejectment cannot be soughtunder another (Act). The effluxion of nearly 30 years after theacquisition cannot alter the legal position that ejectment alsoought to be effected under the same Act as that under whichthe acquisition was made – more so, as that Act itself providesfor a remedy or procedure to be followed for the ejectment ofpersons in occupation of the land acquired. The state Lands(Recovery of possession) Act would have applied to thepetitioner had the petitioner wrongfully regained possession afterhe had been evicted (at the time that the land was acquired) inpursuance of the provisions of the Land Acquisition Act. There
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Edwin v. TUlakaratne
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is room for thinking or rather conjecturing that the petitioner isnot entitled to compensation under the Land Acquisition Act,since compensation would have been paid to Abul Raheem(owner) from whom the state had acquired the land.
But, when the statutory scheme embodied in the relevantAct (Land Acquisition Act) itself provides a procedure forejectment or remedy, it must, in the generality of cases, be takento exclude any other procedure or remedy. One has to follow theprocedure given in the Land Acquisition Act itself to remove thepetitioner, more so as the petitioner is not a person who wasin unauthorised occupation but, as explained above,, clearly“a person interested” within the meaning of section 7 of thesaid Act, This is a case where the right to eject the petitionerexisted solely by virtue of the Land Acquisition Act and wherethe state acquired ownership also by virtue of that Act. Andas such, rights as had vested in the state by virtue of theacquisition under the relevant stature can be enforced only inthe way contemplated and authorised by the same statute. Theright (of ownership) and remedy (procedure in ejectment) -after the state had acquired the land – are both given bv thesame Act, so to speak, uno flatu (in one breath), and onecannot be dissociated or disentangled from the other.
One recalls those historic words which the courts adopt asa general rule of conduct: “That no man of what estate orcondition that he be, shall be put out of land or tenement
without being brought in answer by due
process of law”.
It means much the same as Madison meant when heproposed an amendment to the constitution of the United Stateswhich was accepted in 1791 in the fifth amendment : “no
personshall be deprived of life, liberty, or property
without due process of law”. By “due process of law" meant themeasures or steps sanctioned by the law “so as to keep thestreams of justice pure: to see that trials and inquiries are fairlyconducted according to law".
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There is no denying that it is violative of "due process oflaw” – a phrase or concept invented or re-discovered, I think,by Lord Denning, to seek to eject the petitioner under StateLands (Recovery of Possession) Act when, in fact, he oughtto be ejected, if at till, as explained above, under the Land Ac-quisition Act for the petitioner had been in physical possessionof the relevant lot as at the date of acquisition by the state, be itnoted, under the Land Acquisition Act, and even before that,and continuously thereafter.
For the aforesaid reasons I do hereby make order grantingan order of certiorari quashing the aforesaid quit notice markedE. In consequence, the application that had been made to themagistrate’s court in pursuance of section 5 of the State Lands(Recovery of Possession) Act cannot be proceeded with. Each ofthe two respondents is hereby ordered to pay Rs. 2100/= ascosts to the petitioner.
Application allowed.